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Customs - Case Laws
Showing 101 to 120 of 663 Records
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2012 (11) TMI 694
Clearance of unbranded carbide dies declaring the value based upon the invoices raised by the supplier, which was based on contract price - assessing authority did not agree with the declared value and enhanced the same Held that:- Merely because the importer has cleared. The goods at enhanced value to save the demurrage charges or otherwise, by itself, does not mean that the importer is consenting to enhance the value. It is right of the importer to contest the enhancement and fact of clearance of goods, cannot preclude the importer from exercising the right of appeal - Assessing authority has not passed a speaking order giving reasons for rejection of the declared price, he set aside the assessment order - matter remanded to the original adjudicating authority
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2012 (11) TMI 693
Demand of duty re-assessment of the Bills of Entry - re-assessment of the Bills of Entry, which were incidentally finally assessed on 25-5-2001 Held that:- The provisions of Customs Act, 1962, clearly lay down that the assessment of Bill of Entry is an appealable decision and if the said Bills of Entry were indicated as finally assessed and there being no change in rate of duty as well as amount of duty, there cannot be any presumption that said Bills of Entry were provisionally assessed and remained to be provisionally assessed. - Decided in favor of assessee.
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2012 (11) TMI 649
Duty drawback Section 74 of the Customs Act 1962 - challenge to the letter denial process of duty drawback claim - letter was challenged by way of certiorarified mandamus and thereafter the writ petition was amended for the relief of mandamus to direct the respondents to pass a speaking order. - held that:- That relief cannot be granted unless and until the petitioner complies with the direction issued in the letter dated 4.10.2005 as the respondents cannot pass a speaking order without relevant records that have to be produced by the petitioner.
No mandamus as sought for can be issued in this writ petition except giving liberty to the petitioner to submit the reply with relevant records to the authority and canvass the issue on merits and in accordance with law. The Writ Petition stands disposed of as above. No costs. Consequently, connected miscellaneous petition is closed.
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2012 (11) TMI 648
Confiscation - Import of a car - violation of licencing restriction high end model namely BMW 730 D SE - Held that:- Person who has lived in a foreign country for a period of 3 years and above is entitled to import a car without licence provided the vehicle was in his use for a minimum period of one year before his return to India - vehicle was procured by the appellant only on 9-8-2010 and shipped immediately thereafter as seen from the Bill of Lading dated 27-8-2010. Therefore, the import is clearly in violation of licensing restrictions - car is liable for confiscation
Whether the car should be confiscated absolutely or allowed to be redeemed on payment of fine Held that:- Appellant was living in a foreign country for about 3 years. Further, there is no allegation that the vehicle was sought to be imported by somebody else using the name of the appellant or any other similar allegations - option to redeem the vehicle on payment of fine deserves to be given to the appellant.
Enhancement of the value Held that:- Vehicle has been imported in violation of licencing restrictions and attempted to be cleared declaring a price lower than even the admitted price - enhancement of value is upheld. - the assessable value of the impugned car works out to Rs. 18,60,725.00.
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2012 (11) TMI 647
Refund - provisional assessment - doctrine of unjust enrichment Held that:- Consequent to provisional assessment, refund arising on final assessment does not require test of unjust - No case was brought out by Revenue with the cogent evidence showing that appellant made refund claim not arising out of finalisation of provisional assessment - import was for captive consumption and appellant has not been unjustly enriched in favor of assessee
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2012 (11) TMI 639
Penalty - Prohibition on import of second hand goods Held that:- Initially Tribunal had reduced fine and penalties to the range of 15% and 5% of the assessable value. From the repeated imports made by the importer it is quite clear that the fine and penalties imposed are not wiping out the profit margin, probably because the wrong value declared also. Considering the repeated nature of the offence there is need to increase this fine and penalty. But still there is no justification for increasing the penalty to about 62% and 25% of the assessable value approved - penalty reduced - appeal is allowed partially.
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2012 (11) TMI 610
Notice of intimation of personal hearing - held that:- If it is a case of confiscation of goods, the same will be in terms of Section 124 of the Customs Act. The petitioner will have to establish in the proceedings, as against the goods under import, that there is no contravention. The question of release of goods is totally different from adjudication as in this case. Both cannot be clubbed together. If the goods are not released, petitioner has to work out his remedy independently. The show-cause notice proceedings cannot be stalled unless it is shown that the authority acted without jurisdiction or contrary to law.
Further, Notice of intimation of personal hearing is an administrative letter and quashing that letter is of no consequence and hence the writ petition is misconceived without application of mind and is, therefore, liable to be dismissed - writ Petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
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2012 (11) TMI 609
Refund in cash - Appellants imported goods and filed two Bills of Entry for home consumption dated 1-9-2005 - Customs EDI systems assessed the Bill of Entry showing Basic Customs Duty at the rate of 7.5%, the Appellants paid Custom duties on the said Bills of Entry based on such assessment - But actually the Customs duty was reduced from 7.5% to 3.75% vide Notification No. 79/2005 which came into force on 1st September 2005 i.e. the date of filing of the Bills of Entry Held that:- This is a case of simple mistake in assessment on account of the fact that computer systems of Customs were not promptly updated. Quite often the notification issued on a day and effective from that day is available to officers outside the Ministry and the public only by evening of the day in the next few days - onus is on the appellants to prove that the incidence has not been passed on is not a heavy burden - appellants are eligible for the impugned refund in cash
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2012 (11) TMI 600
Demand of duty - 100% EOU - re-import of the exported goods under Notification No. 52/2003, - appellant had given an undertaking to re-export the said capsules within six months from the date of re-import - due to short shelf life, the said capsules could not be marketed and, therefore, the appellant decided to destroy the goods Held that:- Due to short shelf life of medicinal capsules, it has deteriorated and it has become unfit for marketing. Therefore, the duty can be demanded only on the value of the deteriorated goods which have to be determined in accordance with sub-section (3) of Section 22 of the Customs Act. It is for the appellant to establish that the goods which they have proposed to destroy has no commercial value whatsoever and no duty liability would be involved - matter remanded back to the original adjudicating authority - appeal is allowed by way of remand.
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2012 (11) TMI 599
Classification - appellant imported - Memory Stick, SD Cards and Micro SD Cards are solid state non volatile storage devices, classifiable under sub-heading 8523 5100 - Departmental Representative emphasised that since the goods imported are not exclusively meant for external use with a computer or laptop as a plugin device and are also not exclusively meant for fitment inside CPU Housing/laptop body, the same are not covered by Sl. No. 17 of the table to the Notification No. 6/2006-C.E. Held that:- Scope of the entry against Sl. No. 17(ii) of the table to the Notification as it stood during the period of dispute, cannot be interpreted on the basis of the wordings of the entry as the same stood w.e.f. 7-5-2010 - requirement of pre-deposit waived
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2012 (11) TMI 571
Royalty to foreign collaborators towards transfer of Technical Know-How - direction for addition with the transaction value to arrive at the assessable value of the goods in importation - Held that:- Persuing the licence agreement entered into by the appellant with the foreign collaborator it is seen that the foreign collaborator (Licensor) grants the Licensee (the appellant) a non-exclusive, non-permissible license technology to manufacture and to sell or otherwise to supply the licenced products. In consideration thereof the appellant has to pay the royalty to the Licensor as the percentage of the net sale price of the licence products in the Indian market.
Nowhere in the agreement is there any condition that the appellant is required to import any components from the licensor. In fact, in 7 of the agreements there is no condition at all with respect to import/purchase of any components from the foreign collaborator. The appellant is free to import the components either from the collaborator or from anybody else. If that be so, the condition that the payment of royalty is relatable to the imported goods and is a condition for sale of goods cannot be sustained in law. The appellant is liable to pay royalty to the foreign collaborator even when the appellant imports the components from anybody else and do not at all import the components from the foreign collaborator. Thus there is no nexus between the royalty payment and the import of components.
There is no evidence which has been produced by the department indicating that the payment of royalty is a condition for the sale of imported components or it is relatable to the imported components. Thus the contention of the Revenue that the royalty amount is to be added with the transaction value to arrive at the assessable value of the goods in importation is rejected - in favour of assessee.
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2012 (11) TMI 570
Revocation of CHA Licence - importer imported 43 consignments of Hot Melt Glue Sticks - Out of 43 consignments, seven consignments have been sold by the importer on high seas to M/s. East India Trading Co. alleged that they have not obtained the authorization from East India Trading Co. & C.S. Enterprises Held that:- Import documents/declaration have been duly signed by the importer and the same were presented before the Customs authorities, and have not objected to the same and did not ask the appellants to produce authorisation from the importer it is the joint responsibility of the proper officer and the CHA to obtain the authorisation from the importer and if it is not asked by the proper officer from the CHA to produce the authorization. Therefore, it is presumed that the authorisation is not required.
Withdrawal of revocation of CHA licence ordered subject to forfeiture of the security amount of Rs.10,000/-
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2012 (11) TMI 569
Refund claim payment of excess duty - duty had been assessed for three packages against prior Bill of Entry and duty deposited in advance, but they received only two packages out of a lot of three packages Held that:- In this case the goods were cleared after the examination as per Section 17 of the said Act and at the time of examination the short landing of the goods had been noticed. Therefore, at the material time itself, the assessment shows that duty payable is Rs. 21,972/- as against the duty deposited of Rs. 45, 982/- and, accordingly, the excess duty paid became refundable
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2012 (11) TMI 532
Treating bunkers to be as a part of the vessel's machinery to attract Entry No.89.08 of the Schedule to the Customs Tariff Act, 1985 - Held that:- Considering the reliance placed by assessee on book titled Ship Design and Construction for demonstrating that fuel and oil contained in the engine department tanks is always associated and connected with the machinery and engine of the ship which forms an integral part of the vessel and also as per the definition of LDT of ship, oil stored in other tanks on the ship are not included in the LDT, however, oil in engine room tanks is included in the LDT and it, therefore, forms part of the vessel and is classifiable along with the ship under Heading No.89.08.
As the fuel and oil contained in the engine tanks is considered to be fuel and oil contained in the vessel's machinery and engines, the same would directly fall within the ambit of sub- para (b) of paragraph 2 of the above referred circular No . 37/96-Cus dated 03.07.1996 and once the fuel and oil contained in the bunkers, that is, engine room tanks, fall within the ambit of sub- para (b), as a natural corollary the same would be classifiable along with the vessel under Heading No.89.08 - in favour of the assessee.
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2012 (11) TMI 531
CHA mis-declaration alleged that during the course of investigation, the DRI recorded a statement of Shri Mukesh Thakkar, Proprietor of the appellant firm wherein the appellant under duress admitted mis-declaration - Held that:- Based on a retracted statement without any corroborative evidence, this charge cannot be established - during the inquiry proceedings, the exporter as also the employee of Shri Vijay Mange have testified the licence was not sublet at all and the transaction was undertaken by the appellant himself - none of the charges imputed against the appellant have any basis. Further the investigating officers, whose cross-examination was sought for by the appellant, never presented themselves for cross examination during the inquiry proceedings, thereby denying the appellant a reasonable opportunity to prove his case - charges have been proved does not stand any legal scrutiny and is perverse and bad in law In favor of assessee
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2012 (11) TMI 530
Drawback benefit - export realization in foreign exchange Held that:- Where Drawback has been paid but the sale proceeds have not been realized in respect of such exports with stipulated time period, such Drawback is to be recovered in terms of sub-rule (2) - RBI master Circular No. 6/2010-11 stipulate as under The claims settled in Rupees by ECGC and private insurance companies regulated by IRDA should not be constituted as export realization in foreign exchange - Respondent exporter herein is not entitle to any Drawback benefit and the demand confirmed by the original authority under above mentioned Rule 16A(2) of the Customs, Central Excise [Duties] & Service Tax Drawback Rules, 1995 is legal & proper
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2012 (11) TMI 519
Classification manufacture of Automation Products, Distribution Control Systems etc. and imported materials required for manufacture of such final products - appellants claimed the classification of the licences under the category of CTH 8538 80 20 - Assistant Commissioner reclassified the said licences under CTH 8538 90 00 Held that:- Software licence certificates are part and parcel of the hardware imported by the appellants. - the software licence certificates, prima facie, related to software pre-loaded into the hardware and the cost of pre-loaded software undisputedly stands included in the assessable value of hardware. - submission of the appellant that the software licence certificate should fall under CH 4907 as Documents of title conveying the right to use Information Technology Software cannot be accepted
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2012 (11) TMI 517
Debonding demand of duty raw material - Held that:- what can be demanded is the customs duty on the unutilized raw material which are lying in stock, at the rate of duty prevalent at the time of payment of duty on the original value of importation - duty demands have been confirmed in respect of raw materials and consumables consumed and utilised in the manufacture of goods which have been exported during the period from 1997-98 to 2001-02. Such a duty demand is totally and completely unsustainable
Debonding demand of duty capital goods - Held that:- Appellant has achieved export obligation and value addition during the first five year block period and achieved positive NFE during the second five year period. Thus non-fulfilment of the conditions of notifications under which the goods are obtained duty-free does not arise at all. Consequently, confiscation of goods under Section 111(o) of the Customs Act, 1962 cannot be upheld as also the imposition of penalty under Section 112(a) Customs Act, 1962 - Duty on the capital goods can be demanded only after grant of depreciation on the capital goods at the rate prevalent on the date of expiry of the warehousing licence - duty on the depreciated value of capital goods at the rate of duty prevalent on the date of debonding - matter remanded back to the original adjudicating authority - appeals are allowed by way of remand.
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2012 (11) TMI 489
Penalty u/s 114A(i) - Held that:- The appellant herein was not served upon any show cause notice in order to make effective contest and reply to the allegations made in the show cause notice, thus issue needs to be reconsidered by the adjudicating authority after considering the reply in the defences taken by the appellant before coming to any conclusion.
The heavy penalty has been imposed on the appellant without adhering to the principles of natural justice. On this ground itself the issue to the extent it is challenged before us needs to be set aside - direction to Commissioner of Customs, Kandla to serve the show cause notice on the appellants & appellant's advocate.
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2012 (11) TMI 488
Notification No.32/97/Cus. dated 1/4/1997 - denial of claim as the activity undertaken is not an activity of jobbing - Held that:- The word jobbing has not been defined under the Customs Notification No.32/97/Cus. dated 1/4/1997 and therefore one would have to apply general meaning of the word jobbing which would mean carrying out predetermined job as directed by the supplier of raw material and returning the resultant product to the supplier. The aforesaid activity is admittedly being carried out by the assessee
Revenue's contention that the activity carried out by the respondent is not job work in view of the decision of Prestige Engineering India Limited (1994 (9) TMI 66 - SUPREME COURT OF INDIA) is misplaced as in that case it was dealing with Central Excise Notification Notification No.119/75 dated 30/4/1975. Thus as decided in CCE, Trichy v. Rukmani Pakkwell Traders (2004 (2) TMI 69 - SUPREME COURT OF INDIA it is impermissible to interpret one notification with the aid of another notification. It would therefore, be inappropriate to import definition of the job work given in excise notification No.119/75 dated 30/4/1975 while construing Customs Notification No.32/97/Cus. dated 1/4/1997.
All that Notification requires is that there should be value addition of 10% or more in the exported product than the value of the goods imported. Further, the Notification nowhere provides that the benefit of Notification would not be available where any indigenous material is used in the manufacture of export product. As it is not permissible to either add or subtract words to exemption notifications as held in M/s. Hemraj Gordhandas v. H.H. Dave, ACCE & C, Surat and others(1968 (9) TMI 112 - SUPREME COURT OF INDIA) no denial to claim is warranted - in favour of assessee.
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